Presented by:

Minakshi Chakraborty,  Presiding Member

BRIEF FACTS OF THE CASE :

This instant case has been filed by the complainant under section 12 of the Consumer Protection Act, 1986. As per submission of the complainant, She has entered into an Agreement dated 31/03/2014 with O.p. no.1 and as per clause of the said Agreement the consideration amount has been fixed as Rs.8,10,000/- out of which the complainant has already paid Rs.5,43,000/- to O.p. no.1.

As per submission of the complainant, the said flat measuring about 450 sq ft of carpet area, situated at the 4^th floor of holding no.16, Danish Molla Lane, P.S. Shibpur, District-Howrah for which the complainant entered into the said tenancy Agreement with O.p. no.1 and agreed to pay a monthly rent of Rs.675/- to O.p. no.2 who is the landlord and the O.p. no.2 being the owner of the said holding verbally agreed to induct the complainant as a tenant in the suit flat. On several occasions, the complainant paid the money to the O.p. no.1 and O.p. no.1 agreed to handover the said flat within June, 2016 but despite repeated request O.p. no.1 refused to handover the possession of the said tenanted flat to the complainant and O.p. no..1 further declared that the complainant have to pay more money in order to get possession of the said flat.

According to the complainant on 05/01/2017 the O.p. openly declared that they will transfer the said flat to the 3^rd party who is offering more money to the suit flat. The complainant sent letter to the O.p. no.1 through her Ld. Lawyer requesting to handover the possession within a period of 15 days but O.p. no.1 did not pay any heed to the proposal of the complainant. The complainant in her complaint petition categorically stated that the O.ps are avoiding to handover the suit flat to her with a dishonest intention to transfer the same to any 3^rd party during continuity of the contract which they have entered into on 31/03/2014 by ensuring the complainant’s exclusive right of tenancy in respect of the said suit flat.

As per submission of the complainant, the conduct of the O.ps. is of gross negligence, deficiency in service as well as unfair trade practice within the scope and ambit of C.P. Act, 1986. Complainant prays for direction upon the O.p.no1 to handover possession with a further direction to O.p. no.2 to create a new tenancy in respect of suit flat by accepting monthly rent of Rs.675/- and the complainant further prays for damages and litigation cost.

DEFENCE CASE:

O.p. no.1 entered appearance by filing w.v. denying inter alia all materials allegations leveled against him. The O.p. no.1 in his w.v. submits that the true fact of the case of the complainant is that complainant has duly paid Rs.5,43,000/- to O.p. no.1 for purchasing one flat at the 4^th floor of holding no.16, Danish Molla Lane, P.S. Shibpur, District-Howrah, on the other hand the complainant also entered into another two Agreements with the said O.p. no.1, one flat/room measuring about 132 sq. ft on the 4^th floor at holding no.296, G.T. Road, P.O.+ P.S. – Shibpur, District-Howrah Pin-711102 at a total consideration price of Rs.1,91,400/- and complainant entered into another Agreement for one flat/room measuring about more or less 56 Sq.ft. on the Ground floor at holding no.296, G.T. Road, P.O.+ P.S. – Shibpur, District-Howrah Pin-711102 at a total consideration of Rs.1,12,000/-. O.p. no.1 further submits that complainant has no sufficient money to purchase the above two flats on proper time due to economical problem and requested to O.p no.1 to adjust the money of Rs.5,43,000/- to purchase the above said two flat at holding no.296, G.T. Road, P.O.+ P.S. – Shibpur, District-Howrah Pin-711102.

After long discussion O.p. no.1 accepted the proposal of the complainant and get possession of the two flats after proper adjustment of the total amount received from the complainant and the complainant declared that she is not interested to take the schedule mentioned flat at any point of time. As per the W/V submitted by O.p. no.1 the complainant has already received Rs.1,90,000/- from O.p. no.1 and the complainant is entitled to take back Rs.41,600/- from O.p. no.1.

According to O.p. no.1 the complainant has suppressed the materials facts for which the O.p. no.1 prays for dismissal of instant complaint petition with exemplary cost.

Accordingly to the w.v. submitted by O.p. no.2 he also supports the case of the complainant but denies the allegations made by the complainant that there is nexus in between O.p. nos.1 & O.p. no.2. O.p. no.2 further submits that, O.p. no.1 intentionally kept the suit flat under his possession and occupation with the intention to grave the suit flat. It is the submission of O.p. no.2 that he on several occasions told O.p. no.1 to handover the suit flat to the complainant but O.p. no.1 did not handover a single flat at the suit holding to the complainant. O.p. no.2 prays for disposal of the case according to the merit of the case.

Evidence on record

The complainant filed evidence on affidavit and written notes of argument which are nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.

Argument highlighted by the ld. Lawyers of the parties

Complainant has filed separate written notes of argument. As per BNA., evidence on affidavit and written notes of argument shall have to be taken into consideration for disposal of the case. O.p. sides have also filed separate w.v. and questionnaire and its answer have also been filed.

Heard argument of the complainant side at length. In course of argument ld. Lawyer for the complainant has given emphasis on evidence and documents produced by them.

From the discussion hereinabove, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainant is the consumer?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainant is entitled to get relief?

DECISION WITH REASONS

The vital issue involved in this instant case is that whether the complainant is a consumer or not. In this case as per submission of the complainant she had entered into an agreement with OP1 on 31/3/2014 as a tenant in respect of the suit flat and paid an amount of Rs.2,23,000/ as part payment with a condition that she will pay rent of Rs. 675/ according to English calendar month in favour of OP2. OP 2 being the owner of the holding verbally agreed to induct this complainant as a tenant. it is the further submission of the complainant that, she paid total amount of Rs.5,43,000/ to the OP1 till date but the flat has not yet been handed over to the complainant for which repeated requests have been made by the complainant to OP1 but all were in vain for which the complainant is compelled to knock the door of the commission with the prayer to give direction to the OP1 to handover the possession of the suit flat within a specified time with a direction to  OP2 to create new tenancy in respect of the suit flat by accepting monthly rent of Rs.675/ with a further prayer for damages for mental agony and pain and litigation cost.

As per written version of OP1 the story was totally different. And as per submission of O.P. no.1, Complainant is only entitled to get back Rs.41,600/ from OP1 because the amount till paid by the complainant to OP1 is adjusted as complainant has purchased two different flats from OP1 and by adjusting the advance money she had given a go bye to her rights.

Opposite party number 2 supported the case of the present complaint in his written statement. In reply to questions filed by OP1 complainant categorically denied that she had ever entered into any agreement with OP1 for purchasing two different flats. Certain documents have been submitted by the complainant by way of firisthi where one letter to OC Shibpur PS has been produced wherefrom it if found that the present complainant in her complaint to O.C., Shibpur PS has categorically stated that two different agreement have been made by and between the complainant with the OP1and by and between the complainant’s son with the developer dated 31/05/2012. Now this is an admitted fact on behalf of the complainant that two separate agreements were entered by themselves for two different flats. As per agreement which is submitted by the complainant being mentioned as DEED OF AGREEMENT BETWEEN DEVELOPER AND NEW TENANT  dated 31/03/2014 in clause no 4 it has been written as “ that the second party will pay monthly rent@ Rs.1.50 per sq ft i.e Rs.675/- monthly payable according to English calendar month….” In clause 5 of the said agreement it has been mentioned that the rent will be enhanced @10% after expiry of every 5 years and more so the second party will use the said rented flat only for business purpose. Every line of the said agreement dated 31/03/2014 clearly indicates that it was a tenancy agreement in between complainant and OP1 and the present complainant has put her signature in the agreement as “new tenant”. From the four corners of the Agreement, it is not clear to this Commission that this is an Agreement for purchasing a flat. Moreso, in the complaint petition, the complainant prays for creating a now tenancy in respect of the said flat by accepting monthly rent. In the Agreement dated 31/03/2014 it has clearly been written that the said rented flat will be for business purpose.

So far as the Consumer Protection Act, 1986 concerned, the main object of the act is to protect the interest of the Consumer and make them aware of their rights. According to Section 2(d) of the Consumer Protection Act, 1986,

“Consumer” means any person who,—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose].

From the definition of the Consumer it is crystal clear that any person who obtains any goods or any services for any commercial purpose is not come within the Zone of consideration of Consumer. Further the complainant herein herself prays for handing over the possession of suit flat to her by way of creating new tenancy by accepting monthly rental of Rs.675/-. So, this is clear case of tenancy and that too for commercial purpose. So, complainant herein is not a consumer at all. This issue is thus disposed of. As the complainant is not a consumer other issues need not be discussed. Complainant is miserably failed to prove her case. All the issues are thus disposed of.

Hence,           

                                                  O R D E R E D

That the Complaint case No.63 of 2017 be and the same is dismissed on contest. No order is passed as to cost.

Complainant is given liberty to file the case before the appropriate forum with same cause of action.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

The Final Order will be available in the following website The word file is drafted and corrected by me.

(Minakshi Chakraborty)

                Member

D.C.D.R.C., Howrah